IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 123

APRIL TERM, A.D. 2015

September 16, 2015

JASON CHRISTOPHER DURKEE,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-14-0307

Appeal from the District Court of Laramie County

The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:

Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. 

Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate 

Counsel. Argument by Mr. Morgan.

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy 

Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D. 

Jackson, Faculty Director, Prosecution Assistance Program; A. Walker Steinhage, 

Student Director; Holli Welch, Student Intern. Argument by Ms. Welch.

Before BURKE, C.J., and KITE*, DAVIS, and FOX, JJ, and KAUTZ, D.J.**

*Justice Kite retired from judicial office effective August 3, 2015, and pursuant to Article 5, § 5

of the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2015) she was 

reassigned to act on this matter on August 4, 2015.

**Justice Kautz was a district judge at the time of oral argument. He was sworn in as a Justice 

on August 4, 2015.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made 

before final publication in the permanent volume.
1

KAUTZ, Justice.

[¶1] Jason Christopher Durkee was convicted after a jury trial of driving while under 

the influence of methamphetamine and aggravated vehicular homicide based upon 

recklessness. He claims his constitutional right to a speedy trial was violated because 

637 days passed between the initial charges and his trial. Applying the test from Barker 

v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), we conclude the delay 

did not substantially impair his right to a fair trial. We, therefore, affirm Mr. Durkee’s 

convictions. 

ISSUE

[¶2] Mr. Durkee presents the following issue on appeal, which we rephrase as a 

question:

Was Mr. Durkee’s constitutional right to a speedy trial violated in a case 

that took over 630 days between his initial arrest and the case going to trial?

 

The State’s issue is similar, although phrased in greater detail.

FACTS

[¶3] On February 21, 2012, Mr. Durkee was delivering food for a Chinese restaurant in 

Cheyenne, Wyoming. At approximately 2:30 p.m., he ran a red light and crashed his 

pickup into Linda Gookin’s car. Mr. Durkee initially told law enforcement he ran the red 

light because he had a sneezing fit. Ms. Gookin was declared dead shortly after the 

collision, and Mr. Durkee provided a blood sample for toxicology testing. The Wyoming 

Department of Health tested Mr. Durkee’s blood sample and found it was presumptively 

positive for amphetamine. The sample was then sent to a Colorado lab for specific 

methamphetamine testing, which was also positive. 

 

[¶4] In May 2012, Detective John Pederson of the Cheyenne Police Department 

informed Mr. Durkee of the blood test results. Mr. Durkee admitted he smoked 

methamphetamine for two hours the night before the collision. He acknowledged he had 

not slept much, if any, that night, and he was “coming down” or “crashing” from the 

methamphetamine high at the time of the collision. During the interview, Mr. Durkee 

confessed he had lied about the sneezing fit and stated he was actually using the GPS on 

his cell phone to locate the delivery address when he ran the red light, although he later 

stated he was only holding the phone. 

[¶5] On July 9, 2012, the Laramie County District Attorney’s office charged Mr. 

Durkee with one count of driving while under the influence of methamphetamine (DUI) 

in violation of Wyo. Stat. Ann. § 31-5-233(b)(iii)(B) and (e) (LexisNexis 2015) and one 
2

count of aggravated homicide by vehicle—DUI, in violation of Wyo. Stat. Ann. § 6-2-

106(b)(i) (LexisNexis 2015) or, in the alternative, one count of aggravated homicide by 

vehicle – recklessness, in violation of § 6-2-106(b)(ii). The district court arraigned him 

on August 24, 2012, but due to a number of issues that will be discussed in detail below, 

he was not brought to trial. 

 

[¶6] On June 5, 2013, Mr. Durkee filed a motion to dismiss for violation of his right to 

a trial within 180 days after arraignment under W.R.Cr.P. 48. He did not request the 

charges be dismissed with prejudice or assert he had been prejudiced by the delay. The 

State agreed the 180 day deadline under the rules of criminal procedure had expired on 

April 25, 2013, but requested the case be dismissed without prejudice so charges could be 

re-filed. The district court dismissed the case without prejudice on June 25, 2013. The 

State re-filed identical charges that same day. 

[¶7] The district court arraigned Mr. Durkee on the new charges on August 30, 2013,

and scheduled the trial to commence on November 12, 2013. Prior to that date, Mr. 

Durkee filed a motion to dismiss for violation of his constitutional right to a speedy trial 

and a motion to dismiss for “extreme prejudice.” Mr. Durkee claimed he was prejudiced 

because his blood sample taken shortly after the collision had been destroyed by the lab 

on March 27, 2013, and, therefore, was not available for independent testing by his 

expert. The district court denied the motions, and Mr. Durkee immediately moved to 

continue the trial. 

[¶8] Mr. Durkee’s trial finally began on April 7, 2014. The trial proceedings took five 

days and included the testimony of numerous witnesses. The police officers testified as 

to the nature of the intersection, the crash, Ms. Gookin’s injuries, and their interactions 

with Mr. Durkee. Detective Pederson recounted Mr. Durkee’s admissions during the 

May 2012 interview. Eye witnesses stated that Mr. Durkee was speeding, ran the red 

light and was using his telephone just prior to the collision. The Wyoming and Colorado 

lab technicians testified his blood sample tested presumptively positive for amphetamine 

and methamphetamine. The State’s expert toxicologist testified about the effects of 

methamphetamine on individuals and the ability to drive safely. The State’s accident 

reconstructionist estimated Mr. Durkee’s speed at the point of impact was 45 to 52 miles 

per hour in the 40 mile per hour zone. The reconstructionist also explained that drivers 

approaching the intersection had a clear view of the traffic light and Mr. Durkee had 

plenty of time to stop after the light turned yellow and then red. The defense accident 

reconstructionist estimated Mr. Durkee was traveling between 34 and 44 miles per hour. 

The reconstructionists agreed there was no evidence Mr. Durkee braked prior to the 

collision. 

[¶9] The jury found Mr. Durkee guilty of DUI and aggravated homicide by vehicle 

based upon recklessness but acquitted him of aggravated homicide by vehicle based upon 

DUI. The district court sentenced him to serve nine to twelve years in prison on the 
3

homicide conviction and a concurrent term of 127 days on the DUI conviction. Mr. 

Durkee filed a timely notice of appeal. 

STANDARD OF REVIEW 

[¶10] We review a criminal defendant’s assertion that his constitutional right to a speedy 

trial was violated de novo. Berry v. State, 2004 WY 81, ¶ 17, 93 P.3d 222, 227-28 (Wyo. 

2004), citing Walters v. State, 2004 WY 37, ¶ 9, 87 P.3d 793, 795 (Wyo. 2004).

DISCUSSION

[¶11] The Sixth Amendment to the United States Constitution states, in relevant part: 

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 

trial[.]” Art. 1, § 10 of the Wyoming Constitution also guarantees a speedy trial on 

criminal charges.1 Claimed violations of the constitutional right to a speedy trial are 

evaluated under the test announced by the United States Supreme Court in Barker, 407 

U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Cosco v. State, 503 P.2d 1403, 1405

(Wyo. 1972). The Barker test includes four factors: “1) the length of the delay; 2) the 

reason for the delay; 3) the defendant’s assertion of his right; and 4) the prejudice to the 

defendant.” Berry, ¶ 31, 93 P.3d at 230-31, citing Harvey v. State, 774 P.2d 87, 92 (Wyo.

1989). See also Ortiz v. State, 2014 WY 60, ¶ 39, 326 P.3d 883, 893 (Wyo. 2014). “No 

individual factor is dispositive;” rather, the factors are “considered together and balanced 

in relation to all relevant circumstances.” Ortiz, ¶ 39, 326 P.3d at 893; Berry, ¶ 31, 93 

P.3d at 231. 

[¶12] The right to a timely inquiry into criminal charges is fundamental and the charging 

authority is required to provide a prompt trial. It is self-evident a criminal defendant has 

no duty to bring himself to trial. Harvey, 774 P.2d at 92, 96; Dickey v. Florida, 398 U.S. 

30, 37–38, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970). Thus, the burden is on the State to 

prove delays in bringing a defendant to trial were reasonable and necessary. Harvey, 774 

P.2d at 95. “The ultimate question is ‘whether the delay in bringing the accused to trial 

was unreasonable, that is, whether it substantially impaired the right of the accused to a 

fair trial.’” Berry, ¶ 31, 93 P.3d at 231, quoting Warner v. State, 2001 WY 67, ¶ 10, 28 

P.3d 21, 26 (Wyo. 2001) (other citations omitted). 

1. Length of Delay

 

1 Mr. Durkee does not argue his right to a speedy trial under W.R.Cr.P. 48 was violated. See Mascarenas 

v. State, 2013 WY 163, 315 P.3d 656 (Wyo. 2013) and Walters v. State, 2004 WY 37, 87 P.3d 793 (Wyo. 

2004) (considering constitutional speedy trial claims without Rule 48 analyses because the appellants

only asserted Sixth Amendment violations).
4

[¶13] “No precise length of delay automatically constitutes a violation of the right to a 

speedy trial.” Berry, ¶ 32, 93 P.3d at 231. Instead, the length of the delay is a watershed 

factor. If the delay is sufficiently lengthy, analysis of the other three factors is required. 

Some delays are so protracted that they must be considered 

presumptively prejudicial and weighed heavily in favor of the 

defendant in the balancing inquiry with the other factors. 

However, other delays are not so long as to be presumptively 

prejudicial, but still require further analysis of the remaining 

speedy trial factors. 

Mascarenas, ¶ 12, 315 P.3d at 661, citing Berry, ¶¶ 32–34, 93 P.3d at 231–32. See also

Rhodes v. State, 2015 WY 60, ¶ 18, 348 P.3d 404, 411 (Wyo. 2015).2

[¶14] Under the constitutional analysis, the speedy trial clock begins at the time of arrest 

or filing of an information or indictment, whichever occurs first. Ortiz, ¶ 40, 326 P.3d at 

893; Berry, ¶ 32, 93 P.3d at 231. In cases where the prosecution dismisses charges and 

subsequently re-files, the period when a defendant is neither under arrest nor subject to 

formal charges is not counted in the speedy trial calculation. However, the periods of 

formal charges are tacked together in calculating the length of delay. Ortiz, ¶ 40, 326 

P.3d at 893, citing Boucher v. State, 2011 WY 2, ¶ 10, 245 P.3d 342, 349 (Wyo. 2011). 

See also Rhodes, ¶ 17, 348 P.3d at 411. 

[¶15] The parties’ computations of the length of delay in this case are almost identical. 

The State calculates 637 days between the charging date and trial; Mr. Durkee’s 

calculation of the delay is just one day less, i.e., 636 days. Under our precedent, a delay 

of this length is considered presumptively prejudicial. For example, in Harvey, Berry and 

Ortiz, supra, we found the delays of 562, 720 and 887 days, respectively, were 

presumptively prejudicial. This speedy trial factor, therefore, weighs against the State 

and triggers analysis of the other three Barker factors. 

2. Reasons for Delay 

 

2 The Tenth Circuit Court of Appeals uses one year as a touchstone for distinguishing between “ordinary” 

and “presumptively prejudicial” delays in bringing a criminal defendant to trial. See United States v. 

Seltzer, 595 F.3d 1170, 1176 (10th Cir. 2010). Like this Court, the Tenth Circuit states a finding of 

presumptive prejudice does not automatically mean a defendant’s speedy trial right has been violated, it 

simply means that the other Barker factors must be analyzed. Id. See also Doggett v. United States, 505 

U.S. 647, 652, n.1, 112 S. Ct. 2686, 2691, n.1, 120 L. Ed. 2d 520 (1992) (“Depending on the nature of the 

charges, the lower courts have generally found post accusation delay ‘presumptively prejudicial’ at least 

as it approaches one year. We note that, as the term is used in this threshold context, ‘presumptive 

prejudice’ does not necessarily indicate a statistical probability of prejudice; it simply marks the point at 

which courts deem the delay unreasonable enough to trigger the Barker enquiry.” (citations omitted)). 
5

[¶16] The second speedy trial factor examines the reasons for the delays in bringing a 

criminal defendant to trial and which party was responsible for the each period of delay. 

We weigh the delays caused by the State against those caused by the defendant, keeping 

in mind it is the State’s burden to bring a defendant to trial in a timely manner and it must 

show that the delays were reasonable and necessary. Harvey, 774 P.2d at 95. Certain 

delays are assigned to the defendant and “may disentitle him to speedy trial safeguards.” 

Berry, ¶ 35, 93 P.3d at 232. These include, “delays attributable to changes in defense 

counsel, to the defendant’s requests for continuances, and to the defendant’s pretrial 

motions.’” Ortiz, ¶ 42, 326 P.3d at 893, quoting Miller v. State, 2009 WY 125, ¶ 40, 217 

P.3d 793, 805 (Wyo. 2009). With regard to delays allocated to the prosecution, we apply 

the following analysis:

A deliberate attempt to delay the trial in order to hamper the 

defense should be weighted heavily against the government. 

A more neutral reason such as negligence or overcrowded 

courts should be weighted less heavily but nevertheless 

should be considered since the ultimate responsibility for 

such circumstances must rest with the government rather than 

with the defendant. Finally, a valid reason, such as a missing 

witnesses, should serve to justify appropriate delay. Wehr v. 

State, 841 P.2d 104, 112–113 (Wyo.1992), quoting Barker.

Berry, ¶ 36, 93 P.3d at 232. 

[¶17] The State filed its initial charges against Mr. Durkee on July 9, 2012. The circuit 

court scheduled his preliminary hearing for July 17, 2012, but he requested a continuance 

before eventually deciding to waive his preliminary hearing on August 7, 2012. Mr. 

Durkee is responsible for the twenty-one day delay between the original preliminary 

hearing date and his waiver of the preliminary hearing. The district court arraigned Mr. 

Durkee on August 24, 2012, and set his trial to begin November 13, 2012. At the 

October 19, 2012, scheduling conference, the district court granted defense counsel’s 

request that the trial be continued so he could retain an expert in accident reconstruction, 

and rescheduled the trial to begin December 10, 2012. Mr. Durkee is responsible for the 

twenty-seven day delay between the original trial date and the rescheduled date.

[¶18] On November 30, 2012, defense counsel notified the district court Mr. Durkee was 

missing. He had cut off his monitoring device and returned it with a note saying he was 

disappearing. The district court vacated the December trial setting. Mr. Durkee was 

eventually located in Washington and returned to Wyoming on January 23, 2013. The 

forty-four day delay between the December 10, 2012, trial setting and when he was 

returned to Cheyenne is assigned to Mr. Durkee. 
6

[¶19] For unknown reasons, neither Mr. Durkee nor the State requested a trial setting 

after his return to the jurisdiction, and the district court did not set a new trial date. The 

court did, however, commence bond revocation proceedings. Mr. Durkee was arraigned 

for bond revocation on February 8, 2013, and a forfeiture hearing was set for March 1, 

2013. The district court continued the bond forfeiture hearing two times, once to 

accommodate a deposition in a civil case pertaining to the collision and again on the 

request of defense counsel because of a conflict in his schedule. The district court heard 

the matter on April 5, 2013, and ordered a portion of Mr. Durkee’s cash bond forfeited. 

Also during this time, Mr. Durkee was sentenced to ninety days in jail for a separate 

controlled substance conviction. 

[¶20] Only later, did the parties consider the speedy trial clock. The State and Mr. 

Durkee agreed the 180 day deadline under Rule 48 expired in late April 2013, and on 

June 5, 2013, Mr. Durkee filed a motion to dismiss for violation of his right to a speedy 

trial under Rule 48. The district court dismissed the first case without prejudice on June 

25, 2013. 

[¶21] It is difficult to assign responsibility for the 133 days between Mr. Durkee’s return 

to Wyoming and his filing of the motion to dismiss. On one hand, the State always has a 

responsibility to bring a defendant to trial, Berry, ¶ 31, 93 P.3d at 231, and we know of 

no reason a trial on the original charges could not have been scheduled while other 

proceedings were pending. On the other hand, defense counsel’s schedule and additional 

proceedings involving Mr. Durkee also contributed to the delay. See generally W.R.Cr.P. 

48(b)(3)(B) (proceedings on other charges against the defendant are not counted in 

computing the time for trial under the rules of criminal procedure). Under these 

circumstances, we conclude the 133 day delay must be attributed equally to the State and 

the defense. 

[¶22] The State re-filed identical charges against Mr. Durkee the same day as the 

dismissal, June 25, 2013. The district court scheduled an arraignment in the second case 

for July 19, 2013, but vacated the setting after Mr. Durkee moved to recuse the judge. 

The district judge referred the recusal motion to another judge but its resolution was 

delayed because Mr. Durkee initially failed to include the affidavit demonstrating judicial 

bias or prejudice mandated by W.R.Cr.P. 21.1(b). The alternate judge denied the motion 

to recuse after a hearing on August 13, 2013. The original district judge arraigned Mr. 

Durkee on August 30, 2013. Mr. Durkee was responsible for the forty-two day delay 

resulting from his motion to recuse. See Ortiz, ¶ 42, 326 P.3d at 893 (defense pretrial 

motions are counted against the defendant).

[¶23] The district court scheduled the trial for November 12, 2013. Mr. Durkee filed a 

demand for a speedy trial on September 4, 2013, and two weeks later he moved to 

dismiss the case for violation of his constitutional right to a speedy trial. On October 28, 

2013, Mr. Durkee filed a second motion to dismiss on the grounds of “extreme prejudice” 

because his blood sample had been destroyed and he could not, therefore, have it tested 
7

by his experts. After the district court denied his motions to dismiss, Mr. Durkee 

requested a continuance of the November 12, 2013 trial. The State objected, but the 

district court rescheduled the trial to begin April 7, 2014. This last delay amounted to 

146 days (or almost five months). 

[¶24] Although a defendant is generally responsible for delays associated with 

continuances he requests, Ortiz, ¶ 42, 326 P.3d at 893, the five month delay gives us 

pause. Mr. Durkee maintains that not all of the delay was his fault. He asserts a crowded 

docket was part of the reason for delay, pointing to the district court’s statement about the 

difficulty of scheduling the trial because of its length. As we stated above, responsibility 

for delays caused by an overcrowded court docket must rest with the government rather 

than with the defendant, although it is not weighted heavily. Berry, ¶ 36, 93 P.3d at 232; 

Rhodes, ¶ 19, 348 P.3d at 411. The record in this case does not, however, demonstrate 

that the district court’s crowded docket was the cause of the lengthy delay between trial 

settings. In fact, the district judge clearly wanted to prioritize Mr. Durkee’s trial and 

mentioned the option of moving a civil trial in order to accommodate it. 

[¶25] Instead, it appears Mr. Durkee needed time for trial preparation and pre-trial 

matters. He filed several motions prior to the April 2014 trial, including a motion for an 

order directing the public defender to pay the costs of his expert witnesses, which 

required a response from the public defender; a motion in limine to exclude the blood 

draw evidence and any evidence that he was under the influence of methamphetamine; 

and a motion for additional funding from the public defender for expert witness fees. 

[¶26] Under our case law, the defendant is generally charged with delay resulting from 

defense motions. See Ortiz, supra. Nevertheless, Mr. Durkee attempts to place 

responsibility for the delays associated with his expert witnesses on the State. He claims 

the State’s belated notice of its expert accident reconstructionist forced him to find 

another expert and, since he did not have sufficient funds to pay the expert, he had to go 

to the public defender’s office to obtain funding. In advancing this argument, Mr. 

Durkee does not claim the State’s expert witness notice was late under the court rules or 

scheduling orders, nor did he move to have the State’s expert witnesses excluded from 

the trial because of a late designation. 

[¶27] Arguing for the continuance of the trial at the November 1, 2013 hearing, defense 

counsel stated:

[Defense Counsel]: And, Your Honor, I do move to 

continue at this time, and mainly based on the issue of 

whether or not the State will provide funds for my client to 

hire these experts. These experts have been contacted 

previously. It has just come to my attention that he had run 

out of funds, or his family had run out of funds, so that’s why 

we filed that motion. The Public Defender’s Office was 
8

served and notified, and . . . I’ve contacted them, and asked 

them if they would be here, but they’re not. . . . So that is,

obviously, an outstanding issue.

I’d just put on the record that there [are] now two 

accident reconstruction reports. Initially, there was one. I

believe the responding officer at the scene. And then, just 

recently, as of, I believe, this week on Wednesday, I think is 

the day that I received the State’s expert opinion on accident 

reconstruction. It’s a total different analysis, and that was 

received Wednesday. So I just want the record to be clear 

that I did not receive any information that the State was going 

outside of what they had already provided [for] hiring a new 

accident reconstructionist. 

THE COURT: They were supplying notices sort 

of because of my pre-trial order and deadlines, and a new 

expert, or accident reconstruction specialist was noticed at 

about that time, just this last week or so?

[Defense Counsel]: Yes. This last week. . . . 

Concerning the toxicologist they intend to provide, or call,

Ms. Stockham, I’ve never received a report from this person. . 

. . I’ve only been notified, I think, in the last day or two, that 

– I received a pre-trial memo that this person may be a 

witness, but no report, so I still have no idea what this person 

is going to say. 

So based on that, I do believe that Mr. Durkee does 

need to respond with experts to these situations, and he needs 

funds to do so. . . .

[¶28] The State responded as follows:

[Prosecutor]: We would oppose taking [the trial] off 

the November 12th docket, Your Honor.

Whether or not we noticed the Defendant this week, 

which again, was in a timely manner, of an additional 

accident reconstructionist, an additional or alternate 

toxicologist, in the very first case, Your Honor, the prior 

docket, again, we have an accident reconstruction. [Defense 

counsel] was supplied with all that information regarding . . . 

Officer Trammell’s reconstruction early on, I’m sure even 
9

before he got our discovery in September, September 11th of 

this year in the second docket. 

Additionally, he was notified about . . . I guess the 

toxicology report at the same time from the prior case, and 

then again in discovery September 11th, and the fact that we 

were going to have a toxicologist. [Mr. Durkee] was 

objecting to the lab results. He was objecting to [the 

supervisor of the Colorado lab] weeks ago. So to come in 

here now and say I didn’t know there was a need for a 

reconstruction expert, or a toxicologist expert for my case 

until just this week, I just feel is not appropriate, Your Honor, 

and any request in that regard, I guess, should just be met 

with a denial. I think we should have the trial on the 

scheduled date.

[¶29] This exchange puts Mr. Durkee’s request for a continuance into context. He 

apparently was not prepared to go to trial on November 12, 2013. Perhaps he was 

counting on his motions to dismiss being granted. In any event, Mr. Durkee was 

certainly aware that the nature of the accident and his use of methamphetamine were 

going to be important issues at trial. In fact, he requested a continuance of the trial in the 

first case so he could look into retaining an accident reconstruction expert. Under these 

circumstances, we will not relieve the defendant of responsibility for the delay associated

with the continuance on the grounds that the State did not give him adequate notice of its 

expert witnesses. 

[¶30] Mr. Durkee also asserts the delay associated with obtaining funding for his experts 

from the public defender’s office should be counted against the State. He cites Justice 

Sotomayor’s opinion in Boyer v. Louisiana, 133 S. Ct. 1702, 185 L. Ed. 2d 774 (2013) 

(per curiam), opposing the United States Supreme Court’s dismissal of a writ of certoriari 

as improvidently granted. The issue in that case was “[w]hether a state’s failure to fund 

counsel for an indigent defendant for five years, particularly where failure was the direct 

result of the prosecution’s choice to seek the death penalty, should be weighed against the 

state for speedy trial purposes.” Id. at 1702. 

[¶31] The majority in Boyer ruled the writ was improvidently granted, and Justice Alito 

noted in his concurring opinion that, although the defendant had waited more than seven 

years in Louisiana to be tried on second degree murder and armed robbery charges, “the 

single largest share of the delay in this case was the direct result of defense requests for 

continuances, that other defense motions caused substantial additional delay, and that 

much of the rest of the delay was caused by events beyond anyone’s control.”3Id. at 

1703 (footnote added). Justice Sotomayor insisted delay caused by a state’s failure to 

 

3

Some of the delay occurred because Hurricane Rita forced closure of the courthouse. 
10

adequately fund an indigent’s defense should be weighed against the state and asserted 

the Court should have addressed that narrow issue instead of dismissing the writ. Id. at 

1704. 

[¶32] Setting aside the question of whether an opinion dissenting to a dismissal of a writ 

of certoriari has any precedential value, we conclude Justice Sotomayor’s opinion is not 

relevant to our analysis in the case at bar. The State did not cause any significant delay in 

this case by withholding funds for Mr. Durkee’s expert witnesses. He did not file his 

request for expert witness funding until October 28, 2013, and defense counsel 

represented to the district court at the November 1, 2013, hearing that he had been in 

contact with the experts. The public defender stipulated to providing funding, and the 

district court entered an order granting the request on November 8, 2013. Mr. Durkee 

filed a motion for additional funding on April 8, 2014, and the motion was granted the 

very next day. By that time, trial had already commenced. Under these circumstances 

where the defense requested the continuance of the trial date over the State’s objection, 

filed several pre-trial motions and obviously had a significant amount of preparation to 

do after the vacated November 12, 2013 trial date, we conclude Mr. Durkee was 

responsible for the 146 day delay. 

[¶33] In total, Mr. Durkee was directly responsible for 280 days of the 637 day delay. 

Additionally, the 133 day delay preceding his motion to dismiss the first case is partially 

attributable to him. The delays wholly and partially attributable to Mr. Durkee amount to 

413 of the 637 day total. With regard to the delays caused by the State, there is no 

indication the prosecution acted with ill will or with intent to hinder the defense. See

Ortiz & Berry, supra. Under these circumstances, we conclude both the State and the 

defense should bear responsibility for the delay. The second Barker factor is neutral.

3. Defendant’s Assertion of Right to Speedy Trial 

[¶34] The third factor in a constitutional speedy trial analysis is the defendant’s assertion 

of his right to a speedy trial. Although a defendant is not required to assert his right to a 

speedy trial, his assertion or failure to assert is a factor for consideration in evaluating a 

speedy trial claim. Berry, ¶ 45, 93 P.3d at 236, citing Harvey, 774 P.2d at 95. We also 

consider the vigor with which the defendant claimed his right to a speedy trial in 

determining the reasonableness of any delay. Wehr, 841 P.2d at 113. 

[¶35] Mr. Durkee did not file a written demand for a speedy trial in the first case, and he 

made no effort to secure a trial setting during the months following his return from 

Washington. In fact, he did not assert his right to a speedy trial until he moved to dismiss 

the first case pursuant to Rule 48 on June 5, 2013. That was nearly eleven months after 

the initial charges were filed against him. 
11

[¶36] The State filed the charges in the second action in June 2013, and Mr. Durkee 

presented a demand for speedy trial in September 2013. Soon after, he also filed a 

motion to dismiss for violation of his right to a speedy trial. Contrary to these overt 

attempts to obtain a prompt trial date, he requested a continuance and acquiesced in the 

district court’s decision to postpone the trial by an additional five months after his 

motions to dismiss were denied. In fact, the record indicates he needed that time for 

various pre-trial motions and to secure expert witness testimony. Under these 

circumstances, we cannot conclude Mr. Durkee vigorously asserted his speedy trial right. 

This factor weighs in favor of the State. 

4. Prejudice to Defendant 

[¶37] The final factor in the Barker analysis measures the prejudice suffered by a 

criminal defendant from the delay in bringing him to trial. “Although an affirmative 

demonstration of prejudice is not a prerequisite to establishing a constitutional violation 

of the right to speedy trial, the question whether the defendant was prejudiced should be 

considered.” Berry, ¶ 46, 93 P.3d at 236-27, citing Harvey, 774 P.2d at 96 and Moore v. 

Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973). Prejudice to a 

defendant as a result of pretrial delay may consist of: “1) lengthy pretrial incarceration; 2) 

pretrial anxiety; and, 3) impairment of the defense.” Berry, ¶ 46, 93 P.3d at 237, quoting 

Harvey, 774 P.2d at 96. The impairment of defense factor is the most serious because it 

impacts the defendant’s ability to prepare his case and skews the fairness of the entire 

system. Ortiz, ¶ 62, 326 P.3d at 896; Rhodes, ¶ 20, 348 P.3d at 411. 

[¶38] Mr. Durkee quotes Caton v. State, 709 P.2d 1260 (Wyo. 1985) and Berry, supra, 

about the prejudicial effects of pretrial anxiety and lengthy incarceration; however, he 

does not explain how pretrial anxiety and incarceration actually affected him. His bare 

assertions are insufficient to warrant our consideration of those factors. Ortiz, ¶¶ 60-61, 

326 P.3d at 896. We note that other factors may have contributed to any anxiety and 

incarceration Mr. Durkee may have experienced, including his sentence for a different 

controlled substance violation and his abscondence from bond.

[¶39] Mr. Durkee focuses his argument on the most important prejudice factor, the 

impairment of his defense as a result of the delay in bringing him to trial. See Ortiz, ¶ 62, 

326 P.3d at 896. He claims he was prejudiced because his blood sample was destroyed 

prior to trial and he was unable to have it independently tested. To evaluate this factor, 

we will provide a synopsis of the facts and course of proceedings pertaining to the blood 

sample.

[¶40] Ms. Gookin died shortly after the collision on February 21, 2012, and Mr. Durkee 

provided a blood sample at law enforcement’s request. The sample was initially sent to 

the State of Wyoming’s Department of Health where it tested presumptively positive for 

amphetamine. On March 27, 2012, Mr. Durkee’s blood sample was sent to the Colorado 
12

Department of Public Health and Environmental Laboratory Services Division to be 

analyzed specifically for methamphetamine. Two tests were conducted at that facility. 

One was an initial screening which was positive for methamphetamine and the other was 

a confirmatory test that measured the level of methamphetamine in Mr. Durkee’s blood. 

The report generated by the Colorado laboratory stated the blood sample would be stored 

for one year, after which it would be destroyed unless other arrangements were made. 

[¶41] Mr. Durkee received the Wyoming and Colorado lab reports from the State on 

October 30, 2012. The State’s certificate of discovery specifically informed Mr. Durkee:

Notice of any physical evidence collected in the case is 

included in the discovery reports provided to defense. . . . If 

defense counsel wishes to examine any items of physical 

evidence at any time prior to trial, such arrangements must be 

made with the custodian of the evidence as noted in the 

reports. 

The Colorado lab destroyed the blood sample on March 27, 2013, in accordance with its 

policy of storing samples for one year unless other arrangements were made. There is no 

indication in the record that Mr. Durkee made any effort, prior to the sample’s 

destruction, to have it tested or notified the Colorado lab (or anyone else) that it should be 

preserved. 

[¶42] In the fall of 2013, Mr. Durkee filed a motion to dismiss for violation of his right 

to a speedy trial and a motion to dismiss for “extreme prejudice.” He claimed 

independent testing of the blood sample was crucial to his defense because the Colorado 

laboratory that performed the positive methamphetamine tests had closed after being 

criticized for failing to follow proper procedures and its director having a bias in favor of 

prosecutors. After hearing the parties’ arguments at a hearing held November 1, 2013, 

the district court denied both motions. 

[¶43] Shortly after the district court denied Mr. Durkee’s motions to dismiss, he filed a 

motion in limine to exclude all evidence relating to the blood draw or showing that Mr. 

Durkee was under the influence of methamphetamine at the time of the collision. As 

with the earlier motions to dismiss, Mr. Durkee’s argument that the evidence should be 

excluded was based largely on the unavailability of the blood sample for independent 

testing and the problems with the Colorado laboratory. The district court denied the 

motion in limine. 

[¶44] The trial began as scheduled on April 7, 2014. The State’s evidence included Mr. 

Durkee’s admissions about using methamphetamine, not sleeping the night before, and 

“crashing” or “coming down” from his methamphetamine high at the time of the 

collision. The presumptive positive blood test results were admitted into evidence, 
13

although the conclusive test which measured the amount of methamphetamine in his 

blood was not.4 The State’s toxicology expert testified methamphetamine is a stimulant 

which makes a person very alert and euphoric when first ingested but, when the levels in 

the bloodstream drop, the user goes into a “crash” phase and becomes extremely fatigued. 

The toxicologist also stated a user may still be impaired as a result of the drug while in 

the crash phase. 

[¶45] Under these circumstances, we cannot conclude the delay hindered Mr. Durkee’s 

defense. Mr. Durkee was notified the sample was not in the State’s custody and the lab 

would destroy it one year after receipt. He could have arranged for independent testing 

prior to its destruction or he could have asked that the blood sample be preserved, but he 

did not. Any prejudice associated with his inability to test the sample was diminished by 

his admission that he used methamphetamine the night before the collision and the fact 

that the State did not introduce evidence of the quantity of methamphetamine in his blood 

at trial. 

[¶46] We addressed somewhat similar circumstances in Strandlien v. State, 2007 WY 

66, 156 P.3d 986 (Wyo. 2007). The defendant was convicted of aggravated vehicular

homicide for killing someone while driving intoxicated. Id., ¶ 4, 156 P.3d at 989. We 

held the defendant was not prejudiced by the delay in bringing him to trial even though 

his blood sample was destroyed prior to his arrest because he failed to establish additional 

tests might yield a different result. Id., ¶¶ 17-18, 156 P.3d at 992. As we noted above, 

Mr. Durkee’s prejudice argument is even less convincing because he admitted to using 

methamphetamine. 

 

[¶47] Furthermore, the jury did not convict Mr. Durkee of aggravated homicide by 

vehicle based upon the DUI, but rather of aggravated homicide by vehicle based upon his 

reckless conduct. The jury instruction on that charge stated, in relevant part:

The elements of the crime of Aggravated Homicide 

by Vehicle – Reckless, as charged in Alternative Count 1 of 

this case are:

1. On or about the 21st day of February, 2012;

2. In Laramie County, Wyoming;

3. The Defendant, Jason C. Durkee;

4. Drove a vehicle;

5. In a reckless manner;

 

4 The prosecutors informed the district court they had been unable to serve a subpoena on the lab 

technician who performed the test measuring a conclusive level of methamphetamine in Mr. Durkee’s 

blood. They conceded that, without the technician’s testimony, they would be unable to establish 

foundation for admission of the conclusive test result. Consequently, only the presumptive tests were 

admitted into evidence. 
14

6. And his conduct is the proximate cause of [the] death of 

Linda Gookin. 

(emphasis in original). 

[¶48] The district court also instructed the jury on the definitions of recklessly and 

proximate cause:

“Recklessly” is defined as the following conduct: A 

person acts recklessly when he consciously disregards a 

substantial and unjustifiable risk that the harm he is accused 

of causing will occur, and the harm results. The risk shall be 

of such nature and degree that disregarding it constitutes a 

gross deviation from the standard of conduct that a reasonable 

person would observe in the situation. 

The “proximate cause” of an injury is that cause which 

in natural and continuous sequence, unbroken by an 

independent and intervening cause, produces injury, and 

without which the injury would not have occurred, the injury 

being the natural and probable consequence or result of the 

wrongful act. The proximate cause must be a substantial 

factor in bringing about the injuries or death.

[¶49] The jury could have considered numerous circumstances as evidence of Mr. 

Durkee’s recklessness, including: his admitted ingestion of methamphetamine; his fatigue 

from having not slept the night before and “coming down” or “crashing” from the 

methamphetamine high; speeding; researching an address on his cell phone while driving 

rather than watching the road; and failing to stop or even brake for the red light. In light 

of the abundant evidence of recklessness, any harm associated with the unavailability of 

the blood sample was not significant.5 Given there is no showing that Mr. Durkee was 

prejudiced by the delay, this factor weighs in favor of the State. 

5. Balancing the Factors 

 

 

5Although Mr. Durkee’s argument seems to focus primarily on his right to a speedy trial on the homicide 

charge, we note he was also convicted of driving while under the influence of methamphetamine to a 

degree that rendered him incapable of safely driving. Section 31-5-233(b)(iii)(B). For that conviction, 

the State did not need to prove there was a certain amount of methamphetamine in his system, but only 

needed to show he was under the influence of the drug to a degree that made him incapable of safely 

driving. His admission that he used methamphetamine, together with the toxicologist’s explanation of 

how the drug affects a user and the other evidence of his recklessness, satisfied the requirements of the 

DUI statute. The loss of the blood sample, therefore, did not prejudice his defense on the DUI charge. 
15

[¶50] Mr. Durkee relies heavily on Harvey, 774 P.2d 87, in arguing that his 

constitutional right to a speedy trial was violated. We ruled in Harvey that a delay of 

eighteen months in bringing the defendant to trial amounted to a violation of his right to 

a speedy trial. That is a shorter period of delay than Mr. Durkee experienced. However, 

we also found that Mr. Harvey was not responsible for any of the delay in that case. Id. 

at 95. That stands in stark contrast to the many delays caused by Mr. Durkee in this case, 

including his abscondence, requests for continuances of the preliminary hearing and trial, 

and his many pre-trial motions. Given these differences, we do not find Harvey to be 

particularly helpful in balancing the speedy trial factors here.

[¶51] In this case, the 637 day delay is substantial; consequently, the first factor weighs 

against the State and in favor of Mr. Durkee. The second factor, the reasons for the 

delay, is neutral. Mr. Durkee and the State were both responsible for significant portions 

of the delay. Mr. Durkee did not vigorously or consistently assert his right to a speedy 

trial, so the third factor weighs in favor of the State. The fourth factor tips the scale in the 

State’s favor. Mr. Durkee’s defense simply was not prejudiced by the delay. Under 

Barker, the delay was not unreasonable, i.e., it did not substantially impair Mr. Durkee’s 

right to a fair trial. Mr. Durkee’s constitutional right to a speedy trial was not violated. 

[¶52] Affirmed.